IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: 23009/2012
In the matter between:
VALISWA GADINI PLAINTIFF
and
THE MINISTER OF POLICE DEFENDANT
Case no: 9021/2013
And in the matter between:
THANDIKHAYA SHWENI PLAINTIFF
and
THE MINISTER OF POLICE DEFENDANT
Coram: AG CHRISTIANS AJ
Heard: 17, 18 November 2025, 5 December 2025
Delivered: 9 June 2026
Summary: personal injury – plaintiffs shot by rubber bullets causing injury
– public service protest – SAPS deployed to control protesting crowd – onus
to prove justification – self-defence, necessity, voluntary assumption of risk
– onus not met
JUDGMENT
Christians AJ
Introduction
1] This judgment concerns two separate actions that, by agreement
between the parties, were heard together. In both cases, the plaintiffs
instituted claims against the Minister of Police (the Defendant) for
damages alleged to have been sustained as a result of being shot with
rubber bullets on 30 July 2012.
2] The merits and quantum in respect of both cases have been separated
and, thus, only the merits served before me for determination.
3] In case number 23009/2012, the Plaintiff is Ms Valiswa Gadini
(Ms Gadini), who alleges that she was shot in her right upper thigh by
members of the South African Police Service (SAPS) whilst walking
home from the taxi rank. In case number 9021/2013, the Plaintiff is
Mr Thandikhaya Shweni (Mr Shweni), who alleges that he was shot in
his right eye whilst sitting outside his house. Both incidents were
alleged to have occurred in or around Sweet Home Farm, Philippi ,
Western Cape.
4] Although the Defendant did not admit that the Plaintiffs were shot, as
alleged, the Defendant assumed the duty to begin. The crux of the
defence was that, on the day in question, members of the Philippi
community engaged in service delivery protests which necessitated
police intervention. The protesting crowd became increasing violent
towards the police officers on duty at the protest and , as a result, police
officers fired bullets at the crowd. On this basis, the Defendant alleges
that the police office rs acted in self -defence; alternatively out of
necessity. The Defendant further alleges that the Plaintiffs were or
should have reasonably been aware of the violent service delivery
protest, and that members of the SAPS may have had to discharge their
firearms in policing the violent service delivery protest. As a result of
such knowledge, and appreciating the risks involved, the Plaintiffs
consented to the risk of injury by participating in the violent protest
and/or being present on the scene and/or not removing themselves from
the scene.
The evidence for the Defendant
Mr Jonker
5] The Defendant’s first witness was Mr Jonker who , at the time of
incident, was a Warrant Officer and video operator in the Public Order
Policing Services unit (“the POPS”). He recorded the service delivery
protest on 30 July 2012, which recording was played in court and
admitted as an exhibit.
6] The video recording, and the context provided by Mr Jonker, showed
the events of the day as they unfolded from approximately 07h12 until
10h05, when the video ends.
7] At the start of the video, it can be seen that a crowd has already
gathered near and around the intersection of Duinefontein Road and
Govan Mbeki Road. At around 07h30, the POPS trucks (colloquially
referred to as “Nyalas”) drove towards the crowd in an effort to drive
the crowd back. The police officers also shepherd ed the crowd, who
were singing and dancing, towards a large field in front of the Sweet
Home residential area.
8] At 07h34 one of the Nyalas drove forcefully towards a small group of
people gathered around a fire in the middle of the road. This action
seemed to have evoked an animated reaction from the group and others
who joined and began gesticulating and yelling in the direction of the
Nyala. The larger crowd was still gathered to the left of this small
group and the camera pans towards the larger crowd. Two loud bangs
can then be heard, followed by two more shortly thereafter,
accompanied by flashes of light and smoke visible on screen. Mr
Jonker explained that stun grenades were thrown to give the crowd a
fright.
9] This action had the intended effect because the crowd dispersed and ran
towards the Sweet Home residential area. One of the Nyalas can be
seen driving on the pavement towards the retreating crowd. At 07h38
Mr Jonker can be heard recording that most of the crowd had dispersed
but that a few people were coming together again. At 07h40, two tear
gas cannisters were thrown towards the regathering crowd. This again
caused a retreat towards the Sweet Home residential area.
10] The video pans to the two Nyalas, both of which were stationary and
facing the Sweet Home residential area – with a field separating the
Nyalas from the crowd . Members of the crowd can then be seen
throwing stones towards the Nyalas from the far side of the field (i.e.
from just in front of the houses). As the camera pans to the right, we
see other members of the crowd running closer towards the police to
throw stones and then retreating back again.
11] At 07h45 one of the Nyalas drove onto the field towards the crowd.
The crowd again retreat ed into the residential area. In his evidence,
Mr Jonker explained that the police officers then started shooting from
his left -hand side (this was around the 07h46 mark). What I find
significant about this part of the recording it that the shots can be heard
after the crowd had already started running towards the residential area.
12] Then, at 07h49 people can be seen running out of the residential area on
the far left side of the open field. The Nyalas cannot be seen at this
time. To the right, the camera zooms into a crowd of people gathered
between the houses.
13] I note that, although 3 minutes apparently lapsed according to
Mr Jonker’s narration, this part of the video was less than 1 minute
long. It is, therefore, apparent that the video recording is not a
complete account of the events that transpired on the morning in
question.
14] Similarly, less than a minute after Mr Jonker narrated the time as
07h49, he recorded the time as 07h53. In the distance, a crowd can be
seen gathered in the road to the right of the residential area and one of
the Nyalas can be seen driving from the direction of the crowd towards
the camera. Mr Jonker’s narration confirm ed, with reference to the
field in front of the residential area that “ it is nice and quiet here in
front of us”.
15] Mr Jonker’s narration then recorded, at 07h54, that the Metro Police
had also arrived. Approximately 6 minutes are then unaccounted for
before Mr Jonker recorded the time as 08h00 “ on the dot ”. At this
time, a Nyala can be seen driving towards the crowd. Members of the
crowd can then be seen throwing stones at the Nyala as it slowly
reverses (at around 08h02).
16] The footage jumps forward to 08h08, at which time the crowd and the
Nyala appear to be in the same place as they were 6 minutes earlier .
No police officers are visible on the screen at this time. The Nyala then
drove towards the crowd and shots can be heard. The first Nyala
disappears into the distance before the second one is seen to the right of
the screen driving in the same direction. Mr Jonker record ed the time
as 08h10.
17] About a further 30 seconds into the video, Mr Jonker record ed the time
as 08h14, at which time a Nyala appears at the front of the screen and,
again, drives in the same direction towards the crowd. The Nyala
turned left into the residential area.
18] There is another short jump in the footage and, shortly after Mr Jonker
records the time as 08h17, one Nyala can be seen driving out of the
residential area and onto the field to drive some stragglers back towards
the residential area. A further 1 minute into the footage, Mr Jonker
recorded the time as 08h20 (i.e. the lapse of 3 minutes in real time).
19] At 08h21, one of the Nyalas can be seen at the intersection, facing the
crowd. Two police officers were standing to the left of the Nyala. The
crowd can be seen throwing stones, although none of the stones appear
to reach the police officers.
20] Shortly after 08h23 the video cuts out and resumes at 08h29. The
crowd can initially be seen running across the field towards the
residential area, shortly followed by a Nyala driving in their direction.
The Nyala stop ped just ahead of the field, whereafter shots can be
heard. We then lose another minute of footage between 08h29 and
08h32.
21] Although there was already a fair bit of damage to public infrastructure
by then , some members of the crowd appear to have become
particularly galvanised in their efforts at this point. However, the video
does not record any police shooting after 08h29.
22] A further 4 minutes into the footage (i.e. from 08h32) , Mr Jonker
recorded the time as 09h01. The footage ends 7 minutes later, with the
time recorded as 10h05. About 3 minutes before the footage ends, a
number of police officers can be seen advancing into the residential
area. However, the camera turns away to show the destruction on the
bridge and surrounding areas.
23] Under cross examination, Mr Jonker accepted that he could not dispute
Mr Shweni’s version that he was at his home when he was shot. Mr
Jonker further conceded that, if that was the case, Mr Shweni would
have posed no threat to the police and there would have been no reason
for the police to shoot at him. Mr Jonker also agreed with Mr Newton,
who appeared for the Plaintiffs, that the police must take care not to
injure innocent by-standers. Mr Jonker also agreed that it was possible
that police officers entered the Sweet Home settlement after the video
recording ended to pursue rioters.
24] Ms Gadini’s version that she was shot whilst waking home from the
taxi rank was put to Mr Jonker . His response was that that innocent
people sometimes get caught in a riot.
25] The only justification Mr Jonker offered for why rubber bullets were
fired on the day was that the crowd had been warned four times and,
despite such warnings, continued to throw stones at the police.
However, when it was put to him, he accepted that, if the situation had
become dangerous for the police officers, they could have found refuge
inside the Nyala vehicles, which were bullet proof.
Col Potgieter
26] The Defendant’s second witness was Colonel Potgieter who, at the
relevant time, was attached to the POPS. He arrived at the scene at
around 10h30 on 30 July 2012 and stayed until 19h00 that evening. His
evidence was that, just before he arrived, members of SAPS had
handled the protest and had effected arrests. By the time he arrived,
there was no protest action.
27] Col Potgieter’s evidence largely focused on how the POPS generally
performs their work, rather than on what actually occurred on the day
in question. He explained that, if a protesting crowd becomes volatile,
the POPS would typically use pyrotechnical resources – e.g. stun
grenades and gas cannisters – as “scattering measures” to disperse the
crowd.
28] As a last resort, and only if the crowd continues to attack in response to
the scattering measures , members of the POPS will get into formation
and, under instruction, will aim at a specific target. If an instruction to
shoot is given, members will aim at waist height to disperse what he
called “splinter groups”.
29] Col Potgieter expressed his view that the force used on 30 July 20 12
was in line with protocol because the crowd was throwing stones and it
was necessary to disperse “splinter groups”. He also indicated that the
four warnings were sufficient for any innocent by -standers to get out of
danger.
30] When Mr O’Brien, who appeared for the Defendant, showed
Col Potgieter a map and indicated the general vicinity of Mr Shweni’s
house, Col Potgieter stated that there would have been no reason for
members of the police officers to go into the residential area. His
evidence was further that police officers would generally not be sent
into the residential area because any unrest in the residential area would
be considered a “secondary threat”; whereas the priority was to respond
to the “primary threat”, being at the site of the protest.
31] Mr Newton referred Col Potgieter to the Incident Reporting
Information System (IRIS) report and the fact that it has no entries from
10h15 to 13h30. Col Potgieter responded by saying that nothing
happened during that period.
32] Col Potgieter further suggested that members of POPS would not go
into the residential area because it was protocol to stay within the safety
of the Nyala.
33] The remainder of Col Potgieter’s evidence was speculation, including
speculation that Mr Shweni might have been part of the protest. He
offered no comment on Ms Gadini’s version.
The IRIS report
34] The IRIS Report (exhibit “B”) records rubber bullet rounds having been
discharged as follows:
05h05: 10 x 12 rounds as response to Golden Arrow Bus being
stoned and set alight
08h00: 10 x 12 rounds and 5 x 12 as response to protesters throwing
stones and glass bottles
08h15: 10 x 12 rounds in response to further stone throwing
08h25: 8 x 12 and 10 x 12 rounds in response to group intimidating
passers by
08h30: 10 x 12 rounds in response to further stone throwing
08h40: 8 x 12 and 10 x 12 rounds in response to more stone throwing
08h50: 12 x 12 and 10 x 12 rounds as response to tyres being burnt
on the railway lines
08h50: 12 x 12 and 10 x 12 rounds as response to group throwing
burning tyres from bridge onto railway lines
35] The identity of the officers who discharged each round is also recorded.
In most instances, the bullet rounds were accompanied by gas
cannisters and/or stun grenades.
36] It will be immediately apparent that most of the above shooting
incidents were not captured in the recording. The gaps in the footage
appear to coincide, in many instances, with the times at which the IRIS
report records that rounds were discharged.
37] Moreover, the bullets discharged at 07h46 appear not to have been
recorded at all.
38] The video footage is, therefore, an incomplete and materially deficient
recordal of what occurred between 07h00 and 10h05 on 30 July 2012.
Ms Gadini’s evidence
39] Ms Gadini’s evidence was that she lives in Sweet Home and, on the
morning of 30 July 2012, she walked to the taxi rank to get to work .
On her way there, she noticed the protest and, upon arrival at the taxi
rank, she found that there were no taxis.
40] She then walked back towards her home when police approached and
started shooting. She was shot in her upper right thigh.
41] During cross -examination, she stated that she left home at 06h45 and
that the walk to the taxi rank is no more than 10 minutes. She also
explained that, before she was shot, she was running away from the
police with a crowd of people and that the police started shooting after
cornering them in a yard. Her evidence was further that “ they were
shooting at us as a crowd”.
42] When it was put to her that the police could not reasonably be expected
to distinguish between protestors and innocent people caught up in the
crowd, Ms Gadini stated pointedly that the police should have been
focused on where the protest was happening and not in between the
shacks.
Mr Shweni’s evidence
43] In a nutshell, Mr Shweni’s evidence was that, on the morning in
question, he was sitting outside his house, basking in the winter
morning sunshine. Whilst in conversation with a neighbour, he
suddenly felt dizzy and was then unconscious. When he came to, he
felt his face was wet and, after touching the right side of his face, he
found that he was bleeding.
44] He then noticed that police were shooting and he took cover to hide.
When things calmed down, somebody called an ambulance but the
ambulance could not get to him because of the protest. A neig hbour
took him to the bridge , where he fell asleep until the ambulance
collected him.
45] The medical report confirmed that he was shot in the right eye with a
rubber bullet (the rubber bullet having been retrieved from his eye). He
lost his eye as a result.
46] Under cross-examination, much was made about apparent discrepancies
between Mr Shweni’s evidence in chief and an earlier affidavit, dated
19 June 2017, in which he stated that he witnessed a protest unfold.
However, like the particulars of claim, the affidavit also states that he
was sitting outside his house when he was shot. The medical records
also indicate Mr Shweni’s residential address as the address at which
the incident occurred. Thus, whether or not his 2017 affidavit was, in
all respects, an accurate account of his instructions to the drafter thereof
is not material. The relevant part of his evidence was that he was
sitting outside his house when he was shot out of nowhere.
47] Mr Shweni could also not recall the time of the incident but was
referred to the medical records which indicated 12h15 as the time of the
incident. However, since Mr Shweni was collected by the ambulance
quite some time after he was shot, the time recording may be
inaccurate.
48] The high water mark of the cross -examination was the submission that
it is highly improbable that the police officers would go into a densely
populated area. From this, the implication was that Mr Shweni must
have been part of the protesting crowd when he was shot.
49] Mr Shweni’s neighbour, Mr Sam was also called as a witness. His
evidence largely corroborated Mr Shweni’s and he recalled that the
incident occurred earlier in the morning and definitely before 12h00.
Evaluation
50] To start, the Plaintiffs’ allegations and evidence that they were shot
with rubber bullets on 30 July 2012 were not seriously challenged .
There was also no evidence to suggest that any persons other than
members of the POPS had discharged rubber bullets on the day in
question. I accordingly accept that each of them were shot by members
of the POPS on the day in question.
51] Thus, with the Plaintiffs having proved, in each case, that the shooting
occurred, the onus shifted to the Defendant to justify the shooting in
each instance.1
52] The real issue to be determined, therefore, is whether the police officers
had a lawful justification for shooting rubber bullets at the Plaintiffs.
This determination necessarily includes an enquiry into the
circumstances under which each of the Plaintiffs were shot.
53] Counsel for the Defendant submitted that the Court was faced with
mutually destructive versions and urged me to apply the test established
in the oft -cited Stellenbosch Farmers’ Winery .2 I have some difficulty
with the submission because the Defendant did not lead evidence to
directly disprove the Plaintiffs’ versions as regards their location when
each of them was shot. The best Mr Jonker and Col Potgieter could
offer were their opinions that there would have been no reason for
police officers to go into the residential area.
54] But the video recording itself proved otherwise. Not only did the
Nyalas follow (or drive) the retreating crowd into the residential area,
but police officers were also seen advancing into the residential area
close to the end of the recorded footage. To this end, the video footage
corroborates Ms Gadini’s evidence – all the more so because, in respect
of the shots that can be heard on the footage (i.e. 07h46, 08h08 and
08h29), the shots were fired after the crowd could be seen already
running away.
55] Even more damning for the Defendant, is that most of the recorded
incidents, as per the IRIS report, occurred during gaps in the video
footage. Even if I assume, in favour of the Defendant, that the shots
heard at 08h08 were incorrectly recorded in the IRIS report as 08h00,
the Court still has no meaningful insight into why or where rubber
bullets were discharged at 08h15, 08h25, 08h40 and 08h50. And since
the 07h46 incident appears not to have been recorded in the IRIS
report, the Court cannot confidently conclude that no shooting occurred
during the other gaps in footage or after 10h05.
56] At this point it is necessary to say that I was also not convinced by
Ms Gadini’ evidence in all respects. If, as she said, she left home at
06h45, then walked 10 minutes to the taxi rank and then walked home,
she would have been home shortly after 07h00. Even if one assumes
she waited 10 – 15 minutes before walking back home, she would have
been home by 07h20 at the latest. Apart from the earlier shooting at
05h05, the first shooting was at 07h46. In the circumstances, and even
if I accept that Ms Gadini was not initially part of the protesting crowd,
I find that it is probable that, at the very least, she joined the crowd
after finding that there were no taxis to get to work.
57] But does that, without more, provide a justification for the police
shooting at her? I think not. That she might have been dishonest on
one aspect of her evidence does not justify an inference that the
remainder of her evidence was false.3 It is as likely that she tailored that
part of her evidence out of fear that she would be non -suited if she
admitted that she had joined in the protest. It does not follow that she
was being dishonest in her description of how she was shot.
Importantly, her evidence that she was shot after being chased into the
residential area is consistent with the video footage.
58] Before dealing with the remainder of the evidence, I reiterate that, the
shooting having been proven, the onus shifted to the Defendant to
prove that the shooting was justified. The justification offered by the
Defendant was three-fold:
58.1. First, that the officers acted out of self-defence;
58.2. Second, that the officers acted lawfully and reasonably out of
necessity to protect their lives and physical integrity and the
lives and physical integrity of innocent members of the public;
or
58.3. Third, that the Plaintiffs consented to the risk of being shot by
being part of the protesting crowd.
59] Both Mr Jonker and Col Potgieter stated, categorically, that it would
not have been necessary for the police officers to enter the residential
area because that was not where the threat was. From this, it must
follow that, to the extent that members of the crowd retreated to the
residential area, it was neither necessary nor appropriate for police
officers to follow and pursue them there.
60] The Plaintiffs’ evidence is that that is exactly what happened. And that
is what appears from the video footage.
61] Equally significant is the Defendant’s failure to call any of the police
officers, even though the IRIS report identifies the names of each
officer who discharged rubber bullets on the day in question. There is,
therefore, no first -hand account from the relevant police officers to
confirm that they did not enter the residential area or, if they did, that
they did not discharge their weapons there. As already stated, the best
Mr Jonker and Col Potgieter could offer was that, in their respective
views, it w ould not have been necessary or appropriate for the police
officers to enter the residential area or to discharge weapons there.
62] In the circumstances, I am not persuaded that I am faced with two
mutually destructive versions. On the one hand, I have heard the first -
hand accounts of the Plaintiffs and Mr Sam, all of whom state
categorically that the Plaintiffs were shot inside the residential area.
63] On this part of Ms Gadini’s version, I find no reason to reject her
evidence. On the other hand, I have the speculative views of Mr Jonker
and Col Potgieter and the incomplete video footage. Indeed, the video
footage that we do have corroborates, to a material degree, that the
police officers did enter the residential area.
64] As far as Mr Shweni is concerned, no evidence at all was presented to
challenge his version that he was sitting outside of his house when he
was shot. That has been his version since the summons was issued in
2013 and I find his version consistent with the probabilities. Although
he could not remember the time, he recalled that he was basking in the
winter morning sun. That could have been during any of the recorded
incidents between 07h46 and 08h50, or it could have been thereafter if ,
like the 07h46 shooting, some shooting incidents were not recorded in
the IRIS report.
65] Also relevant to Mr Shweni’s evidence is Col Potgieter’s confirmation
that police officers are required to aim their shots at waist height. Thus,
the fact that Mr Shweni was shot in the eye is consistent with the police
officers aiming their weapons at what would ordinarily be waist height.
66] I accordingly accept the Plaintiffs’ versions that each of them was shot
inside the Sweet Home residential area.
67] That being the case, the Defendant’s own witnesses accepted that the
police officers would have had no justification to shoot at civilians
inside the residential area. Not least of all because innocent by -
standers, like Mr Shweni, would be at an unacceptable risk of being
caught in the cross-fire.
68] It, therefore, follows that the defence of voluntary assumption of risk –
in respect of both Plaintiffs – must fail.
69] In any event, even if one or both of them were part of the protesting
crowd and were shot in what Col Potgieter called the “primary threat”
area, I am still not persuaded that the Defendant has discharged the
onus of proving that the shootings were justified.
70] Because none of the police officers who discharged their weapons were
called to give evidence, I cannot conclude that any of them were acting
in self-defence. Indeed, Mr Jonker accepted that, if the officers were in
danger, they would have been able to retreat into the safety of the Nyala
vehicles. The video footage also confirms that this was done. By
contrast, the audio on the video footage demonstrates that shots were
fired only after the crowd was already retreating.
71] For the same reason, the Defendant has not demonstrated that, in
discharging the rubber bullets, the police officers acted reasonably and
out of necessity. 4 The three incidents captured on video did not
demonstrate necessity. In each instance, the crowd was already
retreating. There was, therefore, no imminent danger in those
moments. Thus, although the video footage shows extensive damage to
public infrastructure, and there was some evidence of the crowd
harassing passers-by, the video recording does not demonstrate that the
rubber bullets were discharged to stop or prevent the se actions by the
protesting crowd . To the contrary, the only justification offered by
Mr Jonker was that the rubber bullets w ere fired in response to the
crowd throwing stones at the police. The evidence does not show that
discharging rubber bullets at the crowd was reasonably necessary to
dispel the threat of the stone-throwing crowd.
Conclusion and costs
72] In all the circumstances, I find that the Defendant has not discharged
the onus of proving that, in shooting each of the Plaintiffs with rubber
bullets, the police acted lawfully.
73] It was common cause that the POPS members who were on duty at the
protest on 30 July 2012 had acted in the course and scope of their
employment with the SAPS at the time. In the premises, the Defendant
is vicariously liable for the damages arising from the police officers’
unlawful conduct.
74] On the issue of costs, I am satisfied that the nature and complexity of
the disputes justifies the costs of counsel to be paid on Scale C.
Order
75] I thus make the following orders:
Under case number 23009/2012
(a) Defendant is liable for 100% of the Plaintiff’s proven or agreed
damages;
(b) Defendant shall pay the Plaintiff’s costs and, for purposes of
Rule 67A read with Rule 69, the costs of counsel incurred from
12 April 2024 shall be taxed at Scale C.
Under case number 9021/2013
(a) Defendant is liable for 100% of the Plaintiff’s proven or agreed
damages;
(b) Defendant shall pay the Plaintiff’s costs and, for purposes of
Rule 67A read with Rule 69, the costs of counsel incurred from
12 April 2024 shall be taxed at Scale C.
_____________________________
AG CHRISTIANS
ACTING JUDGE OF THE HIGH COURT
Appearances:
For plaintiffs: A Newton
Instructed by: Laubscher & Hattingh Attorneys.
For defendant: S O’Brien SC
Instructed by: State Attorney, Cape Town
1 Minister of Safety and Security v Ntamo and others 2003 (1) SA 547 (SCA) para 3, and the authorities
cited therein.
2 Stellenbosch Farmers' Winery Group Ltd and another v Martell et Cie and others 2003 (1) SA 11 (SCA)
3 See Vilakazi v The State (576/07) [2008] ZASCA 87 (2 September 2008) paras 47 – 49; and Mandhlaami
v Minister of Police (7279/2013) [2017] ZAWCHC 33 (29 March 2017) paras 39 – 40.
4 Petersen v Minister of Safety & Security (514/2008) [2009] ZASCA 88 (10 September 2009) para 11, in
which the following extract from ‘ Delict’ 8(1) Lawsa (2ed) by J R Midgley and J C van der Walt, para 87
was cited with approval:
“An act of necessity can be described as lawful conduct directed against an innocent person for the
purpose of protecting an interest of the actor or a third party… against a dangerous situation…
Whether a situation of necessity existed is a factual question which must be determined objectively…
A person may inflict harm in a situation of necessity only if the danger existed, or was imminent, and he or
she has no other reasonable means of averting the danger…
The means used and measures taken to avert the danger of harm must not have been excessive, having
regard to all the circumstances of the case.”